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A BILL TO BE ENTITLED
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AN ACT
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relating to certain civil actions against persons who file |
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complaints with governmental agencies or quasi-governmental |
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entities. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 6, Civil Practice and Remedies Code, is |
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amended by adding Chapter 140 to read as follows: |
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CHAPTER 140. CIVIL ACTIONS AGAINST PERSONS FILING COMPLAINTS WITH |
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GOVERNMENTAL AGENCIES OR QUASI-GOVERNMENTAL ENTITIES |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 140.001. DEFINITIONS. In this chapter: |
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(1) "Bad faith" with respect to a claim described by |
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Section 140.002(a)(1) filed against a complainant means a claim |
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that is: |
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(A) groundless; or |
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(B) brought for the purpose of: |
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(i) harassing or intimidating a |
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complainant; or |
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(ii) obtaining the withdrawal of a |
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complaint. |
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(2) "Claimant" means a person who makes a claim |
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described by Section 140.002(a)(1) against a complainant. |
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(3) "Complainant" means a person who makes a complaint |
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or who communicates information relevant to a complaint. |
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(4) "Complaint" means a written or oral statement, |
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report, or other communication made to or kept by a governmental |
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agency or quasi-governmental entity. |
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(5) "Good faith" with respect to a complaint means |
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that at the time the complaint was made or intended to be made the |
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complainant had: |
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(A) any reasonable basis in fact for making the |
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complaint; and |
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(B) any reasonable basis to believe that the |
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governmental agency or quasi-governmental entity to which the |
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complaint was made had authority or jurisdiction to receive or |
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review the complaint. |
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(6) "Governmental agency" means: |
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(A) this state, another state of the United |
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States, or the United States; |
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(B) any court, institution, agency, political |
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subdivision, or organ of government established by the constitution |
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or laws of this state, of another state of the United States, or of |
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the United States, including a department, bureau, board, |
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commission, office, or council; or |
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(C) a law enforcement agency. |
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(7) "Groundless" means: |
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(A) without basis in fact; or |
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(B) not warranted by existing law or a good faith |
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argument for the extension, modification, or reversal of existing |
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law. |
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(8) "Harassing conduct" means conduct intended or |
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reasonably calculated to threaten, intimidate, coerce, or mislead a |
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complainant through the use or threat of: |
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(A) physical force against a person or property; |
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(B) injury or damage to a person's personal or |
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business reputation; |
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(C) invasion of a person's right to privacy; |
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(D) a tortious or injurious act intended or |
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likely to cause economic damage or severe emotional distress to a |
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person; |
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(E) communication of information relevant to a |
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complaint known by the person communicating the information to be |
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false at the time it was communicated; or |
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(F) an act in violation of the constitution or a |
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penal law of this state, another state of the United States, or the |
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United States. |
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(9) "Quasi-governmental entity" means a person who, |
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under law or under a formal or informal request by, agreement with, |
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delegation of authority by, or rule adopted by a governmental |
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agency: |
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(A) receives or reviews complaints for the |
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agency; or |
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(B) performs a function of the agency. |
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Sec. 140.002. APPLICABILITY; VENUE; REMOVAL. (a) This |
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chapter applies only to a claim made a basis of a suit filed: |
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(1) against a complainant that: |
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(A) is filed by or on behalf of a person who may |
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be adversely affected by the filing of the complaint; and |
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(B) alleges that the contents of or the filing of |
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the complaint constitutes a basis for relief, including a claim |
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alleging that the contents of the complaint constitute libel or |
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slander; or |
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(2) by or on behalf of a complainant alleging |
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harassing conduct giving rise to liability under Section 140.101. |
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(b) Notwithstanding Subsection (a)(1), this chapter does |
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not apply to a claim if: |
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(1) the complaint is confidential by other law and not |
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a public record available to a member of the public who is not |
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affected by the complaint and the complainant communicated the |
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contents of the complaint to a person other than to the governmental |
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agency or quasi-governmental entity that initially received or |
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reviewed the complaint; |
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(2) the complainant is an employee or former employee |
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of the person who is the subject of the complaint; or |
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(3) the contents of the complaint relate to a matter |
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that is pending before a governmental agency or quasi-governmental |
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entity. |
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(c) This chapter does not create or authorize a cause of |
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action against a quasi-governmental entity, a governmental unit, or |
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their officers, agents, or employees acting in the course and scope |
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of their duties or employment. Notwithstanding Chapter 104, the |
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state is not liable for indemnification of a person for damages |
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arising under this chapter. |
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(d) A claim governed by this chapter shall be brought: |
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(1) in the county of the complainant's residence if the |
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complainant is a natural person; |
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(2) in the county in which the complainant's principal |
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office is located if the complainant is not a natural person; or |
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(3) in the county in which the complaint was made, if |
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the complainant: |
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(A) is a natural person who is not a resident of |
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this state; or |
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(B) is not a natural person and does not have an |
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office in this state. |
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(e) Notwithstanding any other law, on motion of the |
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complainant, a claim governed by this chapter that is brought in a |
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court other than a district court may be removed to a district court |
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in which venue is authorized under Subsection (d). |
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(f) A person against whom a claim is brought may file a plea |
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to the jurisdiction requesting immediate dismissal of the claim if |
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this chapter does not apply to the claim under Subsection (b)(3). |
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If, after dismissal, the claim is brought again and this chapter |
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does not apply to the claim under Subsection (b)(3), the court |
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shall, on the motion of a party or its own motion, impose sanctions |
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on the person bringing the claim sufficient to deter the person from |
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bringing the claim while this chapter does not apply to the claim |
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under Subsection (b)(3). |
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Sec. 140.003. CERTAIN ORDERS PROHIBITED. A court of this |
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state may not issue a temporary restraining order, temporary |
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injunction, permanent injunction, or other order prohibiting a |
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complainant from communicating with a governmental agency or |
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quasi-governmental entity concerning the subject matter of a |
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complaint or a claim governed by this chapter. |
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[Sections 140.004-140.050 reserved for expansion] |
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SUBCHAPTER B. DETERMINATION OF WHETHER COMPLAINT WAS MADE IN GOOD |
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FAITH OR BAD FAITH; CONSEQUENCES |
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Sec. 140.051. BURDEN OF PLEADING. (a) A person asserting |
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a claim against a complainant under Section 140.002(a)(1) must |
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plead with particularity all material facts that the person |
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contends establish the right to recovery, including all facts |
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supporting the contention that the complainant did not act in good |
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faith. Each fact asserted in the pleading must be verified by an |
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affidavit made on personal knowledge unless the truth of the fact |
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appears of record. |
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(b) The court shall, on motion by the complainant or on the |
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court's own motion, review the pleadings to determine compliance |
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with Subsection (a). |
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Sec. 140.052. NO LIABILITY FOR GOOD FAITH COMPLAINT. (a) |
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A complainant who makes a complaint in good faith is not: |
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(1) liable for monetary damages arising from the |
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complaint; or |
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(2) subject to injunctive or declaratory relief with |
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respect to the complaint. |
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(b) A complaint is presumed to be made in good faith. A |
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complainant may prove the complaint is made in good faith by |
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demonstrating that a reasonably prudent person, under the same or |
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similar circumstances, could have believed that: |
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(1) a reasonable basis in fact existed for making the |
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complaint; and |
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(2) the agency or entity to which the complaint was |
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made had authority or jurisdiction to receive or review the |
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complaint. |
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Sec. 140.053. SUMMARY JUDGMENT; EXPEDITED HEARING TO |
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DETERMINE BAD FAITH CLAIM. (a) The court shall promptly grant |
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summary judgment with respect to a claim described by Section |
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140.002(a)(1) if: |
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(1) the complainant demonstrates that the complaint |
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that is the subject of the claim was made in good faith under |
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Section 140.052(b); or |
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(2) the pleadings fail to allege: |
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(A) a cause of action against the complainant for |
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which relief may be granted; or |
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(B) facts sufficient to rebut the presumption |
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that the complaint was filed in good faith. |
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(b) On motion of the complainant, a court that grants |
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summary judgment under Subsection (a) shall promptly hold a hearing |
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to determine whether the claim was brought in bad faith. |
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(c) A complainant must file the motion for an expedited |
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hearing under Subsection (b) not later than the 30th day after the |
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date on which the order granting summary judgment is signed. On |
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request of a party, the hearing shall be before a jury. The Texas |
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Rules of Civil Procedure apply to the selection of the jury, the |
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court's charge to the jury, and all other aspects of the |
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proceedings. |
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(d) On motion of the complainant in a case involving three |
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or more parties, the court shall sever the claims as necessary to |
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allow relief granted under Subsection (a) or Section 140.054 to |
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become immediately final and appealable. |
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Sec. 140.054. BAD FAITH CLAIM. (a) If the trier of fact |
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determines that a claim described by Section 140.002(a)(1) was |
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brought in bad faith, judgment may be entered awarding the |
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complainant: |
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(1) actual damages; and |
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(2) attorney's fees and court costs under Section |
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140.055. |
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(b) A person against whom judgment is entered under this |
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section and any attorney representing the person in filing the |
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claim are jointly and severally liable for damages awarded under |
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this section. |
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Sec. 140.055. COURT COSTS AND ATTORNEY'S FEES. A |
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complainant is entitled to recover court costs and reasonable and |
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necessary attorney's fees if judgment is entered holding a |
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complaint made the basis of a suit under Section 140.002(a)(1) was |
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filed in good faith. |
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Sec. 140.056. PROFESSIONAL DISCIPLINE. (a) If judgment is |
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entered against an attorney under Section 140.054(b), the attorney |
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is subject to professional discipline for professional misconduct |
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in accordance with Subchapter E, Chapter 81, Government Code, and |
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to suspension or disbarment for dishonorable conduct under Section |
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82.062, Government Code. |
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(b) The court shall promptly report a judgment described by |
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Subsection (a) to an appropriate grievance committee under Chapter |
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81, Government Code, or under a similar law in any jurisdiction in |
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which the attorney resides or is licensed. |
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(c) A report under Subsection (b) must contain: |
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(1) the name of the attorney against whom judgment was |
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entered; |
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(2) the jury verdict or findings of fact by the court; |
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and |
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(3) the judgment. |
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[Sections 140.057-140.100 reserved for expansion] |
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SUBCHAPTER C. LIABILITY FOR HARASSING CONDUCT |
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Sec. 140.101. LIABILITY FOR HARASSING CONDUCT. (a) A |
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person is liable for damages to a complainant and is subject to |
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injunctive or declaratory relief if the complainant demonstrates by |
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a preponderance of the evidence that: |
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(1) the complainant made or intended to make a |
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complaint in good faith; |
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(2) the person against whom the claim under this |
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section is made committed or caused to be committed harassing |
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conduct against the complainant; and |
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(3) the harassing conduct was committed to: |
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(A) obtain the withdrawal of the complaint; |
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(B) prevent or limit the complainant's |
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participation in a formal or informal investigation or proceeding |
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by a governmental agency or quasi-governmental entity arising from |
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or relating to the complaint; |
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(C) prevent the filing of the complaint; or |
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(D) retaliate for the complaint. |
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(b) If the trier of fact determines that a complainant has |
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demonstrated facts proving liability under Subsection (a), |
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judgment may be entered awarding the complainant: |
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(1) actual damages; and |
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(2) reasonable attorney's fees and court costs. |
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SECTION 2. This Act applies only to a claim described by |
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Section 140.002, Civil Practice and Remedies Code, as added by this |
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Act, filed on or after the effective date of this Act. A claim filed |
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before the effective date of this Act is governed by the law |
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applicable to the claim immediately before the effective date of |
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this Act, and that law is continued in effect for that purpose. |
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SECTION 3. This Act takes effect September 1, 2009. |